THE MADISON COMPANIES, LLC, AND HORSEPOWER ENTERTAINMENT, LLC APPELLANTS
GRANT WILLIAMS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, TWELFTH DIVISION [NO.
60CV-15-2799] HONORABLE ALICE S. GRAY, JUDGE.
Wright, Lindsey & Jennings, LLP, by: Scott A. Irby and
Michael A. Thompson and Brownstein Hyatt Farber Schreck, LLP,
by: Richard B. Benenson, pro hac vice, for appellants.
Wright & Collier, PLLC, by: Nate Steel, Alex T. Gray, and
Scott Poynter, of counsel, for appellee.
W. GRUBER, Judge.
issue in this interlocutory appeal is whether an arbitration
agreement exists between appellee, Grant Williams, and
appellants, The Madison Companies, LLC, and Horsepower
Entertainment, LLC (a wholly owned subsidiary of The Madison
Companies, LLC). The Pulaski County Circuit Court entered an
order finding that an arbitration agreement did not exist
between the parties. Appellants appeal from the court's
order, arguing that there is a valid, enforceable arbitration
agreement, that Mr. Williams's claims against appellants
fall within the agreement, and that they have the right to
enforce the agreement. We affirm the circuit court's
February 14, 2015, Mr. Williams purchased tickets online for
an outdoor music festival, Thunder on the Mountain, to be
held June 26-28, 2015, on Mulberry Mountain near Ozark,
Arkansas. Although the parties dispute appellants'
precise role in organizing and promoting the festival, Mr.
Williams alleged in his complaint that Pipeline Productions,
Inc. ("Pipeline"), and Backwood Enterprises, LLC
(together, the "Pipeline Defendants"), and
appellants jointly organized and promoted the festival.
According to Mr. Williams, the Pipeline Defendants had a
dispute with appellants about funding after tickets had
already been sold, but the joint group continued to promote
and sell festival tickets. Finally, on June 12, 2015,
Pipeline notified Mr. Williams and other ticket holders that
Thunder on the Mountain had been canceled and that Pipeline
would refund ticket holders' money within 90 days.
22, 2015, Mr. Williams filed a complaint on behalf of himself
and a class of similarly situated persons against the
Pipeline Defendants and appellants. Mr. Williams alleged that he
had purchased tickets to Thunder on the Mountain from
appellants and the Pipeline Defendants. He claimed that they
had hidden the funding issues from him and other ticket
purchasers, continuing to sell tickets with the knowledge
that the festival was at great risk of being canceled. Thus,
he alleged, he and others continued purchasing tickets,
making hotel and other accommodation plans, and incurring
substantial damages. Mr. Williams alleged that the Pipeline
Defendants and appellants had violated the Arkansas Deceptive
Trade Practices Act and that their acts were deceptive,
unfair, unconscionable, and misleading.
filed a motion to compel arbitration on December 18, 2015.
They did not produce either a contract or arbitration
agreement between themselves and Mr. Williams. Rather, they
produced an arbitration agreement from the website of Front
Gate Tickets ("Front Gate"), the conduit through
which all online tickets to the festival had allegedly been
sold. They also attached the affidavit of David R. Lionette,
a senior vice president for asset management with The Madison
affidavit, Mr. Lionette stated that his duties included
overseeing and managing this litigation against appellants.
He said that he had accessed the Front Gate Tickets Thunder
on the Mountain Festival website through a Google search,
link and was transferred to a webpage containing Front
terms included a binding arbitration agreement. He attached a
the arbitration agreement, to his affidavit. He then stated
that, although he could not purchase tickets for the Thunder
on the Mountain Festival because his search was performed
months after the show had been canceled, he visited the main
Front Gate Tickets' website and accessed four other
events for which he could purchase tickets. He stated that
there was a prominent hyperlink for Front Gate's terms of
use at the bottom of each website for the four events. He
and that all included arbitration agreements. According to
his affidavit, in Mr. Lionette's experience, each
event's website had an identical checkout procedure for
the purchase of tickets. He attached screenshots of each
checkout screen. He stated that a consumer could not execute
a purchase until he or she affirmatively agreed to the terms
of sale. He said that there was a hyperlink on the
"terms of sale" language and that by clicking on
the link, a consumer could view the entire terms of sale,
including an arbitration agreement. He claimed that, based on
his review of these websites, the arbitration agreement for
each of the four events' websites was identical to the
arbitration agreement for Thunder on the Mountain Festival.
Mr. Lionette's affidavit and attached screenshots and Mr.
Williams's ticket, or print pass, which included the
Front Gate Tickets logo on the bottom, appellants argued in
their motion that there was clearly a valid and binding
arbitration agreement between Front Gate and Mr. Williams;
that language in the agreement extended the agreement to
other parties; and that Mr. Williams was equitably estopped
from refusing to arbitrate with appellants because he was
seeking to enforce claims directly related to the contract.
hearing on the motion, the circuit court expressed doubt that
appellants could prove the existence of an arbitration
agreement between them and Mr. Williams by producing an
arbitration agreement they had obtained online between Front
Gate and another purchaser for another event. Appellants
argued that Mr. Williams's assent to an arbitration
agreement with Front Gate could be inferred from Mr.
Lionette's affidavit regarding Front Gate's
procedures and processes for other events. Mr. Williams
objected to Mr. Lionette's affidavit for lack of personal
knowledge and proper authentication regarding Front
Gate's website and operations. The court then recognized
two concerns: first, the affidavit was from an employee of a
party rather than Front Gate and, second, there was nothing
in the record to reflect that what the employee saw on Front
Gate's website was in place when Mr. Williams purchased
his tickets ten months earlier. The court's order,
entered on February 17, 2016, denying appellants' motion
to compel arbitration "in all respects" stated the
following: "The Court does not find that an arbitration
agreement exists between [Mr. Williams] and
order denying a motion to compel arbitration is an
immediately appealable order. Ark. R. App. P.-Civil 2(a)(12)
(2016). We review a circuit court's order denying a
motion to compel arbitration de novo on the record. HPD,
LLC v. TETRA Techs., Inc., 2012 Ark. 408, at 5, 424
S.W.3d 304, 307. We decide the issues on appeal using the
record developed in the circuit court without deference to
the circuit court's ruling. Wyatt v. Giles, 95
Ark.App. 204, 205, 235 S.W.3d 552, 554 (2006). We are not
bound by the circuit court's decision, but in the absence
of a showing that the circuit court erred in its
interpretation of the law, we will accept its decision as
correct on appeal. Diamante v. Dye, 2013 Ark.App.
630, at 4, 430 S.W.3d 196, 199. Further, we recognize that
arbitration is strongly favored in Arkansas. Courtyard
Gardens Health & Rehab., LLC v. Arnold, 2016 Ark.
62, at 6, 485 S.W.3d 669, 673.
court is asked to compel arbitration, it is limited to
deciding two threshold questions: (1) Is there a valid
agreement to arbitrate between the parties? and (2) If such
an agreement exists, does the dispute fall within its scope?
LegalZoom.com, Inc. v. McIllwain, 2013 Ark. 370, at
8-9, 429 S.W.3d 261, 265. A threshold inquiry is whether an
agreement to arbitrate exists; that is, whether there has
been mutual agreement, with notice of the terms and
subsequent assent. Alltel Corp. v. Sumner, 360 Ark.
573, 576, 203 S.W.3d 77, 80 (2005). We keep in mind two legal
principles when deciding whether the parties to an
arbitration agreement entered into a valid contract: (1) a
court cannot make a contract for the parties but can only
construe and enforce the contract that they have made; and if
there is no meeting of the minds, there is no contract; and
(2) it is well settled that in order to make a contract there
must be a meeting of the minds as to all terms, using
objective indicators. Williamson v. Sanofi Winthrop
Pharm., Inc., 347 Ark. 89, 98, 60 S.W.3d 428, 434
(2001). Both parties must manifest assent to the particular
terms of the contract. Alltel Corp, 360 Ark. at 576,
203 S.W.3d at 80. For a party to assent to a contract, the
terms of the contract, including an arbitration ...